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2011 DIGILAW 753 (UTT)

BALA v. PREM CHAND VISHWAKARMA

2011-12-29

TARUN AGARWALA

body2011
JUDGMENT Heard Mr. Pankaj Miglani, the learned counsel for the petitioners and Mr. Navneet Kaushik, the learned counsel for respondent Nos. 1 and 2. 2. The petitioner is the defendant appellant. The plaintiff opposite party had filed a suit for partition alleging that his father Sri Ganga Dutt had purchased a property through his own funds and had left behind three heirs, namely, the plaintiff, the husband of the petitioner as well as a daughter. The petitioner resisted the suit contending that by an oral family settlement, the property in question had been given to the petitioner's husband and, therefore, the plaintiff has no right or share in the said property. In paragraph 15 of the written statement, it was further alleged that Sri Ganga Dutt had executed a will in favour of the husband of the petitioner and that the said will has been misplaced and as and when it is traced out, it would be filed before the trial court. 3. The suit was decreed and the property was partitioned. The petitioner, being aggrieved, filed an appeal and, during the pendency of the appeal, found the will executed by her father-in-law in the year 1982. Accordingly, the petitioner filed an application under Order 41 Rule 27 of the C.P.C. to produce the will, executed by Sri Ganga Dutt, as additional evidence contending that after a search, the will was found. The lower appellate court after considering the matter rejected the application on the ground that the appellant was trying to delay the hearing of the appeal. The petitioner, being aggrieved, has filed the present writ petition. 4. Admittedly, an averment, about the execution of the will, had been alleged by the petitioner in paragraph 15 of the written statement. It was also contended that the will had been misplaced and was not traceable. The amendment application indicates that the will has now been found and is the same will, which has been averred in paragraph 15 of the written statement. 5. In a suit for partition, the parties must be given full opportunity to produce evidence in support of their case. The court below should keep in mind that the property is being divided by metes and bounds and in order to substantiate justice, such additional evidence, should be brought on record notwithstanding, the exercise of due diligence. 6. 5. In a suit for partition, the parties must be given full opportunity to produce evidence in support of their case. The court below should keep in mind that the property is being divided by metes and bounds and in order to substantiate justice, such additional evidence, should be brought on record notwithstanding, the exercise of due diligence. 6. In the opinion of the Court substantial cause was shown and the additional evidence should have been brought on record. The lower appellate court fell in error in not allowing the application for additional evidence to be brought on record. 7. For the reasons stated above, the impugned appellate order cannot be sustained and is quashed. The writ petition is allowed. The application for additional evidence under Order 41 Rule 27 filed by the petitioner is allowed subject to the payment of cost of Rs. 3,000/-, which shall be deposited before the trial court within four weeks from today. The amount so deposited can be withdrawn by the plaintiff.